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Judgment
A.S. Naidu, J.—The Oriental Insurance Company has preferred this Appeal assailing the judgment passed by the Third Motor Accident Claims Tribunal, Puri in MACT Misc. Case No. 106/470 of 1991/1986. According to the appellant, the Insurance Company is not liable to pay the compensation of Rs. 52,900/- as the claimant was a passenger in the bus and the maximum liability of the insurer was only to Rs. 15,000/-as was prevalent at the relevant time. It is also alleged that the policy having been cancelled as the cheque bounced, the Insurance Company was not liable to pay any compensation.
Bereft of all unnecessary details, the short facts are as follows :
Admittedly, on 15.10.1986 the claimant-Respondent No. 1 was traveling in a bus bearing Registration Number OSU 9423 from Puri to Bhubaneswar on payment of hire charges. Another bus bearing Registration number ORX 5557 was proceeding ahead of the bus in which the claimant was travelling. The driver of the bus OSU 9423 wanted to over-take the bus ORX 5557. The driver of the latter bus made a show of giving side to the former one by moving the bus towards left. But when the gap between two buses substantially reduced, the driver of the bus ORX 5557 steered the vehicle to the right so as to prevent the bus OSU 9423 from over-taking. The driver of the bus OSU 9423 being perplexed and in order to avoid collision applied sudden brake, but then, the vehicle which was in high speed and was in the process of over-taking capsized on the road. As a result of such accident, the claimant as well as many other passengers sustained grievous injuries. The claimant was sent to Chandanpur P.H.C. for treatment and thereafter, she was shifted to Head Quarters Hospital, Puri. She remained under treatment till 9.11.1986. She sustained compound fracture of right scapula and dislocation of the shoulder joint. During the treatment, her condition became serious and she was removed to S.C.B. Medical College-Hospital, Cuttack where she was treated for quite some time. She became permanently disabled.
Admittedly she was working as nursing sister in the District Head Quarters Hospital, Puri and was aged about 43 years at the time of accident. She was drawing a salary of Rs. 4,800/- per month besides having some additional income. She claimed a sum of Rs. 1,20,000/-as compensation.
The vehicle in which the claimant was travelling i.e., OSU 9423 was in sued with the Oriental Insurance Company and the other bus i.e., ORX 5557 was insured with the New India Assurance Company. Both the Insurance Companies were parties before the Tribunal.
On receiving notice, both the Insurance Companies filed their written statements whereas the owners of both the vehicles did not take any steps and were set ex-parte. The Insurance Companies in their written statement baldly denied the fact of accident and pleaded that the claimant and the owners of the vehicles should prove all the allegations beyond reasonable doubts and should be put to strict proof. The Oriental Insurance Company towards fag-end of the case filed an additional written statement pleading that the policy of the vehicle in which the claimant was travelling was cancelled as the cheque issued by the owner was dishonoured and as such, it is not liable to indemnify the compensation. In the alternative, pleaded that since the claimant was a passenger in a passenger bus, the liability is limited to Rs. 15,000/- only.
The Tribunal framed as many as five issues. In order to substantiate her case, the claimant examined three witnesses and exhibited 12 documents. The appellant-Insurer examined one witness and exhibited one document.
The Tribunal on scrutiny of the evidence came to the conclusion that the claimant was travelling in the offending bus bearing Registration Number OSU 9423 and due to the accident she sustained grievous injuries. It was further held that the accident took place due to contributory negligence of both the vehicles. On the basis of the evidence, both oral and documentary, the Tribunal attributed 70% negligence to the bus bearing Registration Number ORX 5557 and 30% to the bus bearing Registration Number OSU 9423 in which the claimant was travelling.
After going through the impugned judgment and the evidence available on record, I find that the Tribunal has properly assessed the evidence. Scrutiny of the oral evidence leads to an irresistible conclusion that the accident, in fact, occurred due to utter negligence of the driver of the bus ORX 5557. The competition amongst the private buses running between Puri and Bhubaneswar, it appears, is creating a menace. The evidence clearly reveals that in order to harass and cause inconvenience to the bus OSU 9423 in which the claimant was travelling, the other bus deliberately after giving an impression that it had permitted the said bus to over-take it, took a right swing thereby compelling the latter bus to apply sudden brake which resulted in the accident. At the same time it cannot be said that the driver of the bus OSU 9423 was not negligent. After re-assessing the evidence, I agree with the conclusion arrived at by the Tribunal holding that the driver of the bus ORX 5557 was 70% negligent and the driver of the bus OSU 9423 in which the claimant was travelling was 30% negligent.
The only other question needs to be considered is the quantum of compensation to which the claimant is entitled and who is liable to pay the said compensation. Admittedly, the claimant was a young lady. She was a Government servant working as a staff nurse and she became invalid for all purposes. Taking into consideration her salary, loss of income and other factors, the Tribunal has rightly awarded a sum of Rs. 52,900/- as compensation with 12% interest thereon. Admittedly the claimant has not preferred any appeal challenging the said quantum. I have, therefore, no hesitation to confirm the compensation awarded by the Tribunal, but then I reduce the interest from 12% to 6% per annum.
Now coming to the question of liability it appears that a stand has been taken by the appellant-Insurance Company that the policy was cancelled as the cheque issued by the owner of the vehicle OSU 9423 in which the claimant was travelling, bounced. Such a plea was not taken in the original written statement. It cannot be presumed that when the written statement was filed, this fact was not known to the Insurance Company. Filing of an additional written statement specially when the claim petition was not amended is unknown to law. Even otherwise, as would be evident from the evidence of O.P.W. No. 1 vis-a-vis Ext-A the appellant-Insurance Company totally failed to establish the fact that it had intimated the owner of the offending vehicle before the date of accident that the Insurance Policy stood cancelled. In absence of such cogent evidence, the Tribunal has rightly rejected the contention raised by the appellant. I find no reason to differ from the said finding. However, I find some force in the contention raised by the Insurance Company to the effect that since the claimant was a passenger in the offending vehicle, the liability of the Insurance Company is confined to Rs. 15,000/- only in consonance with the provisions of the M.V. Act as it that existed at the time of accident. The Insurance Company, however, totally failed to establish the fact that no higher premium was paid to cover higher amount.
Be that as it may, since 70% of the negligence has been attributed to the bus bearing Registration Number ORX 5557 it is also liable to pay considerable part of the compensation awarded. The Tribunal exonerated the Insurer of the said vehicle on the ground that the policy was not produced. But then the claimant could not be in a position to furnish the Policy Number. In the peculiar facts and circumstances of this case, it was incumbent upon the Insurance Company and/or the owner to produce the policy. The Tribunal should have taken adequate steps to get the policy produced before it either by the Insurance Company or by the owner of the vehicle by issuing suitable directions and by taking steps for calling for the policy in the ends of justice. No doubt for effectual adjudication of the case, production of the policy was very much necessary. Without such important materials the dispute could not have been efficaciously adjudicated.
In view of the discussions made above, while confirming the percentage of negligence of the two vehicles and also the quantum of compensation awarded by the Tribunal, I have no hesitation to remand the case to the Tribunal. The Tribunal shall issue notice to the owner of the bus ORX 5557 once again and take adequate steps for production of the Insurance Policy of the said vehicle either from the Insurance Company or from the owner. The Tribunal shall also permit the parties to adduce further evidence, if necessary, and decide as to which of the parties is liable to pay the compensation awarded.
The accident took place in the year 1986. The claimant has become permanently disabled. Taking into consideration all the facts and in consonance with the provisions of Section 140 of the M.V. Act, I direct that the amount deposited by the Insurance Company before this Court along with the interest accrued thereon be disbursed in favour of the claimant-Respondent No. 1 towards no-fault liability. It is needless to say that the said amount shall be adjusted towards the final Award.
With the aforesaid observation and directions, the Misc. Appeal is disposed of and MACT Misc. Case No. 106/470 of 1991/1986 is remanded back for fresh disposal in accordance with law with regard to the liability of the parties to pay the compensation awarded only. The Tribunal is directed to dispose of the case as expeditiously as possible preferably within a period of one year from the date of receipt of the records. The lower Court records be sent back forthwith.